April 10, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
North Waterloo and Samad: Was broken leg suffered during an assault an accident pursuant to the SABs; slip and fall; accident; causation test; was the assault an intervening act; was the assault and broken leg part of the usual operation of the vehicle
Date of Decision: March 2, 2017
Heard Before: Adjudicator David Evans
- The Arbitrator’s Order of April 1, 2016 is confirmed and this appeal is dismissed.
REASONS FOR DECISION
North Waterloo Farmers Mutual appeals the decision of Arbitrator Arbus dated April 1, 2016, wherein the Arbitrator found Mr. Samad, North Waterloo’s insured, was in an “accident” despite being the victim of an assault.
Mr. Khuram Samad was a taxi driver who was assaulted by a passenger on December 31, 2012. The issue before the Arbitrator was whether the incident was a car “accident” as defined by the SABS. The parties agree that Mr. Samad suffered an impairment (a broken leg) directly caused by the incident, but not that the use or operation of his van was part of it.
The incident happened after Mr. Samad picked up three teenagers. One of the passenger punched Mr. Samad harmlessly in the face, Mr. Samad stopped the van and the passengers left it, leaving a rear door ajar. When Mr. Samad got out of the van and went around to the other side to close the rear door he was shoved by one of the passengers. He fell into the ditch and was injured. The passengers fled on foot. Mr. Samad climbed out of the ditch, got into his van and tried to drive but the pain was intensifying so he pulled over, called the police, and was taken by ambulance to the hospital. Critical also to the Arbitrator’s conclusion was Mr. Samad’s testimony that there was ice underfoot when he was pushed. The Arbitrator discussed this when dealing with the intervening act and dominant feature tests of causation.
North Waterloo submitted that the assault was not an ordinary and well-known activity to which an automobile is put, that it was an intervening act that directly caused Mr. Samad’s impairment, and that it was the dominant feature of the incident. Mr. Samad submitted that the assault was only one direct cause of his injuries, the other being the use or operation of his motor vehicle.
Arbitrator Evans reviewed Arbitrator Arbus’ reasoning. Arbitrator Arbus considered the purpose test, the starting point in determining if an incident was an accident, and noted that the purpose test asks whether the incident arose out of the ordinary and well-known activities to which automobiles are put. He found the purpose test was satisfied because the taxi was being used for its ordinary purpose of picking up and transporting passengers.
Next, Arbitrator Arbus considered the causation test, which asks whether the use and operation of the automobile directly caused the impairment. The Court of Appeal provided three bases or prongs for meeting causation Which Arbitrator Arbus correctly applied, and found that Mr. Samad satisfied the purpose test and the three prongs of the causation test, so he was in an accident as defined in the SABS.
The two main tests to determine if an incident was an accident are the purpose and causation tests. On the intervening act test, the Arbitrator provided very little analysis, simply finding that the intervening act of the assault by one of the passengers or the Applicant slipping on the ice was insufficient to disentitle Mr. Samad.
North Waterloo submits that the use or operation of the taxi had stopped at the point Mr. Samad was closing the van door, and that slipping on ice itself was an intervening act that was not part of the “ordinary course of things.” However, prior to the hearing in this matter, Arbitrator Evans advised the parties of a couple of decisions dealing with slipping on ice around the use or operation of an automobile:
There has been extensive discussion of the cases, but I don’t see reference to two “interrupted journey” cases that may be relevant and that went to appeal.
- In one case, the Applicant was found to have been involved in an accident when he fell on ice as he approached his car after filling tires with air.
- Another case described as even “closer to the line” than Saad was one where the Applicant was found to be involved in an accident when running to check on her friends in another car.
Arbitrator Evans found that these cases support both the proposition that the use or operation of the van continued during the course of the incident, and that slipping on the ice while so engaged was not an intervening event. He also noted that in this case, Mr. Samad not only planned to continue operating the van as he was closing the sliding van door, he did continue operating the van, despite his broken leg.
That leaves the matter of the assault. As Arbitrator Arbus noted there can be more than one direct cause of an impairment. North Waterloo’s essential argument is that slip and fall cases like Saad fall on one side of this line-drawing exercise, and assaults on the other. It submits that an assault with an element of slipping is still on the not-accident side of the line. Therefore, it submits that whether you consider the intervening act or the dominant characteristic criteria, it is still an assault scenario.
Arbitrator Evans agrees that in the vast majority of cases, whether at FSCO or before the courts, assaults are seen as intervening acts, so the vehicle is only the location of the assault and not a direct cause of any impairment resulting from the assault however, in this case Arbitrator Arbus was correct in finding that the use or operation of the vehicle was not simply incidental to the assault but contributed to the impairment.
As to the dominant purpose test, Arbitrator Evans found no one dominant feature between the assault and slipping on the ice. He agreed with Arbitrator Arbus statement that the dominant feature throughout was the use or operation of the van, and neither the assault nor the slipping on the ice detracted from it.
Arbitrator Evans found that Arbitrator Arbus did not err because, in the particular circumstances of this case, the assault was not a dominant feature of the incident leading to Mr. Samad’s impairment.
The appeal is therefore dismissed, and the Arbitrator’s order is affirmed.